Question: Do the family courts conform with the rule of law?

NAAP14  ?? Question ?? :

Do the family courts conform with the rule of law?

My own considered answer is simply NO, they do not. At best they merely pay lip service to it. However, the last post we put up ‘Making a difference – How to use democracy’-provides a means of starting to conform with the very first of Lord Bingham’s 8 principles but it does require people to actually do something.

Please read this and please share your thoughts with us. What do you think?

Firstly, here is some background information which will help you think about this.

Background

The UK prides itself in its legal system and its universal application of the Rule of Law (ROL). The Rule of Law has even been described as ‘the UK’s most successful export’. Former Attorney General Dominic Grieve wrote:

‘The UK recognises the importance of developing the rule of law, legal institutions and the capacity of countries to deal with legal matters, as crucial to our mutual national interests. The ‘Golden Thread’ of the rule of law runs through not only the ability to prosecute serious crime and terrorism but increasingly wider agendas such as prosperity, development and growth.’

What is the rule of law?

Dominic Grieve went on to praise the esteemed jurist Lord Bingham’s vast contribution in promoting and describing the core principles of the Rule of Law (ROL). Lord Bingham considered:

‘…that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.’

The core principles of the rule of law

Lord Bingham went on to outline 8 simple principles which he saw as being the key ingredients necessary to support that aim. In brief these were:

1 The law must be accessible, intelligible, clear and predictable.

2 Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.

3 Laws should apply equally to all.

4 Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers.

5 The law must afford adequate protection of fundamental Human Rights.

6 The state must provide a way of resolving disputes which the parties cannot themselves resolve.

7 The adjudicative procedures provided by the state should be fair.

8 The rule of law requires compliance by the state with its obligations in international as well as national laws. 

For more details see: https://www.gov.uk/government/speeches/the-rule-of-law-and-the-prosecutor

One thought on “Question: Do the family courts conform with the rule of law?

  1. 1. Access to family law is severely restricted in many ways: it is prohibitively expensive; hearings are secretive, excluding academics and serious researchers (and only admitting accredited journalists); Munby’s guidance on publication of judgments is routinely ignored. It is not intelligible or clear to the layman (my wife and I compiled an A to Z of terms expecting to list 100-or-so and our book now contains more than 500, from Avizandum to Xydhias). The law is not predictable: the outcomes of applications rely heavily on the discretion of individual judges.

    2. Family law disputes are rarely justiciable: i.e., open to resolution through clear and established principles; as Lord Justice Thorpe admitted, “Very few family law decisions that are ‘principled’ decisions have a shelf-life of more than one generation”. Judicial discretion in family law is unlimited, despite Aristotle’s dictum that “the best laws should be constructed so as to leave as little as possible to the discretion of the judge”. Lord Camden warned, “the discretion of a Judge is the law of tyrants: it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion to which human nature is liable”.

    3. Too much family legislation does not apply equally to fathers and mothers, particularly in the areas of benefits and child support; this discrimination has been admitted in cases like Barber and Hockenjos but is excused in some way by the judges. Elsewhere, the law discriminates because it is not applied equally – leading, for example, to the exclusion to large numbers of fathers but relatively few mothers.

    4. CAFCASS has consistently failed to comply with its statutory obligations and has provided a fertile breeding ground for feminist ideology which is inimical to children and families. Family judges often exceed their powers, acting “per incuriam”; the court’s “inherent jurisdiction” gives it unlimited power, described by the blogger Andrew Pack as its “magic sparkle dust”.

    5. The conflicting human rights of the parties in family law are often held to cancel out so that they can be ignored. Applications based on the breach of human rights are rarely successful, and cases brought to the European Court take a very long time and result in financial compensation at best.

    6. The appropriate arena for this is not necessarily the court, but there is minimal non-court provision. Access to any form of parental dispute resolution is enormously expensive and, following LASPO, open only to the wealthy or to women who make allegations of domestic violence. There is very limited evidence that the courts actually facilitate the resolution of disputes, and some evidence that they exacerbate hostility.

    7. Fairness demands equality of arms, and the high costs, coupled with the loss of legal aid after LASPO mean that parties are rarely equally represented. Furthermore, in the absence of research into court outcomes, gendered myths and ideologies have festered in the courts which make balanced adjudication unlikely.

    8. See Re M (Children) [2017] EWA Civ 891, in which the lack of cooperation from CAFCASS and the local authority made it impossible for the court to comply with its obligation to honour a contact order made in Estonia.